A new Act, a new regulator, new standards, new penalties, new duty holders, and new systems – the Independent Taskforce on Workplace Health and Safety has delivered a prescription for radical change.
But that was always going to be the case, given the size of the job it was asked to do.
The Government tasked it with coming up with a reform package capable of slicing 25% off New Zealand’s workplace death and serious injury rate by 2020. The Taskforce thinks that target is achievable, but only if all of its recommendations are implemented.
Timeline from here
- execute search warrants
- issue improvement, enforcement and infringement notices, including without prior warning
- recover its costs, presumably from those prosecuted for non-compliance or breach, and
- apply to the court for adverse publicity orders.
The Taskforce recommends that the objective of the new Act should be “securing” workplace safety, rather than simply “promoting” it as the current Act requires.
It envisages a risk based standard that would require duty holders to take reasonably practicable steps to secure a safe work environment. The new test would set out a mandatory list of relevant factors (including cost-related factors) to be taken into account when balancing the competing interests. But there would also be a presumption in favour of the highest level of protection against harm. The Taskforce sees this as an ongoing and continuous obligation for employers, and other duty holders.
As we noted in a previous Brief Counsel, we are not convinced that the change from “all reasonably practicable steps” to the Australian “reasonably practicable” test is particularly significant. However, we welcome the introduction of a more specific risk-based assessment to help clarify for businesses what factors should be considered, together with the clear presumption in favour of health and safety.
It remains to be seen whether this presumption will change the current view of what is in fact “reasonably practicable” when compared with the costs involved. We think it could well require more cost outlay of businesses in order to meet health and safety obligations. The most significant of those is likely to be in requirements to strengthen earthquake-prone buildings.
New duty holders: directors and officers
The Taskforce wants leadership from the top down with those in governance roles (directors, chief executive officers, chief operating officers etc) who participate in decisions required to exercise due diligence in relation to health and safety matters.
It says that the duty should be of a similar nature and importance to the fiduciary duties that are already held by directors and officers to various stakeholders. This recommendation mirrors the sentiments expressed by the Royal Commission into Pike River that directors should be actively involved in health and safety.
The Taskforce recommends extending the crime of manslaughter to corporations and significantly increasing the penalties that apply to breaches by duty holders. Although it has shied away from creating a new stand-alone offence of corporate manslaughter, it does suggest extending the existing offence in the Crimes Act to include corporations.